Judge Vaughn R. Walker: Measured Justice

Illustration of a gavel on top of a newspaper
Illustration by Gérard Dubois

Judge Vaughn R. Walker’s silky, announcer-like baritone can make a simple declaration sound ominous. In 2011, the LGBT Advisory Board of Indiana University’s Maurer School of Law invited him to give a lecture. Walker captured the attention of the audience with his opening words, “I’m fully aware that this invitation is largely the product of one, and only one, of the some 8,000 cases I handled as a federal judge. Nestled in that fact is an irony that I’m going to talk to you about today.”

Walker, JD ‘70, former chief judge of the U.S. District Court in San Francisco, was of course referring to California’s landmark 2010 case Perry v. Brown. In the case, Walker ruled that voter-approved Proposition 8, defining California marriage as between one man and one woman, was unconstitutional (the U.S. Court of Appeals for the Ninth Circuit has since upheld his ruling, although the case is on appeal to the U.S. Supreme Court). He wrote, “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”

To his Indiana audience, Walker did not elaborate on the facts or parties to his 136-page decision. But he did refer to the avalanche of extreme reactions it triggered. The New York Times’ Frank Rich admiringly called Walker’s ruling a “clarion call” for gay equality while former U.S. Attorney General Edwin Meese, of the same Reagan White House that first nominated Walker to the bench in 1987 and a staunch advocate of Walker before the Senate, nonetheless fumed that his Proposition 8 ruling “is indefensible as a matter of law wholly apart from its result.” Conservative commentator Rush Limbaugh raged, “The federal judiciary is run by leftist nut jobs … picking us apart … this is tyranny.” The cover of This Week depicted Walker, as he described it, “under a rainbow flag in a Mosaic posture leading a group of gays and lesbians across a parted Red Sea to the promised land.”

Walker caught the spotlight again when, after he retired from the bench in early 2011 to return to private practice in alternative dispute resolution, he confirmed to reporters that he is gay. Ironic? Yes, particularly since cases in the federal district court where Walker served are assigned randomly. The Proposition 8 proponents’ subsequent motion that he should have recused himself was quickly dismissed. But his point to the Indiana audience—and to Stanford Lawyer when we sat down to talk in his downtown San Francisco law offices—was that whatever the ironies, the right legal course as an advocate is to put a client’s interest above one’s personal views and as a judge to make a fair and studied interpretation of the law.

Walker’s career covers a significant and diverse body of work, with many successful cases over 18 years at what was then Pillsbury, Madison & Sutro in San Francisco. And then there are those other 7,999 cases he oversaw as a federal judge. Among them: Apple Computer, Inc. v. Microsoft Corporation in which Walker gave only limited intellectual property rights to Apple based on its software program’s “look and feel”; his ruling in favor of Oracle and against the U.S. Justice Department, which was trying to prevent Oracle’s hostile takeover of PeopleSoft on antitrust grounds; and his 2011 ruling that the Bush and subsequently the Obama administrations’ warrantless wiretapping of citizens was illegal (later overturned by the Ninth Circuit). “It’s hard to think of many trial judges who have had a deeper or broader impact on the evolution of the law,” observes Joseph A. Grundfest, JD ’78, William A. Franke Professor of Law and Business at SLS. “Judge Walker has an established reputation as one of the most creative and imaginative judges ever to have served on the trial bench. He’s been at the fore of efforts to reform class-action securities fraud litigation. His antitrust ruling in the Oracle-
PeopleSoft acquisition helped impose discipline on the federal government’s antitrust analysis,” says Grundfest.

VAUGHN RICHARD WALKER was born in Watseka, Illinois, in 1944. His father had begun law school at the University of Michigan in the fall of 1941, only to have Pearl Harbor depth-charge that plan. His father did not go off to war or to law school, but he supported the war effort through the family’s frozen food business. “Black’s Law Dictionary was in the house but my parents were good enough not to push overtly,” says Walker. Walker studied economics at the University of Michigan, then won a Woodrow Wilson Fellowship to study economics at either UC Berkeley or Columbia. “I went to California thinking it the jumping-off spot: full of strange people, weird lifestyles, bizarre customs … but I recall looking across the Berkeley campus about six weeks after I arrived and saying to myself, ‘You know, Walker, this is not too bad after all.’ ”

Yet the heavily mathematics-oriented program turned out not to appeal to Walker, so he transferred first to the University of Chicago and then finally to Stanford Law. Walker valued taking courses in other departments, particularly economics. He says he is impressed that “Stanford is doing it in an integrated way now. The overlap is much greater than is appreciated.” He took several classes from 
Kenneth E. Scott, LLB ’56, Ralph M. Parsons Professor of Law and Business, Emeritus, who today notes that Walker belongs to a group of legal thinkers who emerged during this period and began stressing “not how laws were intended to work but how they did work.” This became important later in Walker’s innovative rulings in large class-action securities fraud lawsuits where the decision making was really in the hands of attorneys rather than plaintiffs. “He approached it from an economic efficiency analysis,” Scott says, and that ultimately influenced important reforms.

Walker’s summers included stints at the U.S. Securities and Exchange Commission and also summer school. After graduation, he worked in Los Angeles for a year and a half clerking for Judge Robert J. Kelleher, who recently passed away. “A clerkship with a federal district judge is the best job a young lawyer can have, without any question,” says Walker. “Not the court of appeals, that’s too much like law school, too much like law review.”

After the clerkship, Walker came north to San Francisco to work for 
Pillsbury (now Pillsbury Winthrop Shaw Pittman) as a litigator. There, says Walker, he learned the important lesson that professional representation is not a personal endorsement: “It is amazing how people find it difficult to comprehend that a lawyer’s job is to represent the client and do what the client thinks is in its best interest. The lawyer is not identical with the client.”

FOR EXAMPLE, IN 1984, Walker was at a meeting of the Lawyers’ Club of San Francisco. Dianne Feinstein (BA ’55) (then mayor now U.S. senator) had introduced an ordinance to ban possession of handguns in San Francisco, and the club voted to endorse the ban. Walker says that ordinance “flew directly in the face of state law, but in any event it seemed like a good idea. I fully supported it.”

However, Pillsbury represented the National Rifle Association. As Walker headed back to his office that very day, one of the firm’s partners pulled him aside. “He said, ‘The NRA wants to challenge the ordinance and wants you to handle the case.’ I said, ‘I just voted for the resolution to support it.’ He said, ‘Oh that doesn’t make any difference; you’re a lawyer.’ We filed the case and won it. It did not represent my personal views. I still think that law would be a good idea.”

But Walker’s most memorable case in private practice, and one that would later haunt his nomination to the bench, had come two years earlier in 1982 when the U.S. Olympic Committee hired him in the case of a former U.S. Olympic team decathlete and a popular gay doctor, Tom Waddell, who wanted to organize the “Gay Olympics” in San Francisco. In 1978, the USOC had been granted by Congress the exclusive right to use the word “Olympic” “for purposes of public identification and promotion.” Dr. Waddell’s lawyer, Mary Dunlap, fought the USOC on the grounds that it was discriminating against gays because it had not sought to ban other uses of the name. Amid intense criticism from the gay community, Walker won an injunction shortly before the games were to proceed. That ruling ultimately was upheld by the U. S. Court of Appeals for the Ninth Circuit and eventually the U.S. Supreme Court.

Looking back, Walker says today, “When I was nominated to the bench, I thought I would be criticized for cases lost. Instead, I was criticized for a case I won.” Sharp attacks from 
legislators, including Representative Nancy Pelosi, and bitter denunciations from gays that Walker was, among other things, “homophobic,” held up his nomination for nearly two years. Dunlap told The New York Times that Walker’s “lack of compassion and inhumanity and coerciveness” should disqualify him.

The case went all the way to the Supreme Court because a new appeals court judge had a different take on a key element of the case from Waddell’s attorney—whether Congress actually had the right to award an exclusive right to the word. Walker suggested that focusing on that argument might have served Dunlap’s client more 
effectively than the discrimination 
argument. “Sometimes lawyers focus their case on points that fail to succeed or miss or neglect an argument that holds greater promise. This is a particular danger of lawyers who litigate a case as a cause, rather than as a dispute to be resolved.”

After his eventual confirmation to the federal bench, Walker gained a reputation as a libertarian, also as an impeccably prepared, fair, precise, and suffer-no-fools jurist. Says a Bay Area attorney who has argued motions in front of Walker, “He is brilliant but he can be irascible. He once was trying to make sure we moved things along and he did not let either side sit down for more than two full hours. I remember that because I had high heels on and that is a long time to be standing in one place.”

And Walker says, with a bit of both merriment and weariness, that attention paid to the Proposition 8 case is the “gift that keeps on giving,” but he is sorry that the video of the proceedings has been sealed, a decision made by the Supreme Court. “It is a shame that the public did not see that trial. It was such a well-tried case. Trials have that capability of bringing forth issues and exposing them to public view in a way that few other forums do. Speeches don’t do it. Political debates fail to do it. Legislative hearings fail to do it. The thrust and parry of direct and cross-examination bring out issues that are very revealing. The trial was not dissimilar to the Scopes trial in 1925, Darrow v. Bryan. It’s almost mythological. But this trial also took place at a turning point in public attitudes, about gay and lesbian people, about marriage, about relationships among people, and those issues were examined in a courtroom. The lawyers on both sides were very good.”

Walker says the attorneys in Perry were not expecting a trial. He could see from the plans they filed that they expected him to rule on motions in summary judgment. But “I thought, look, if we’re going to have these kinds of issues in this case, let’s have a trial of record. Let’s have the facts.”

One element of judging that the public does not appreciate is the pressure, Walker says. The Proposition 8 case, for example, “was more intense and high pressure than the average case. You want to do the right thing, manage the proceedings in a fair way. You know that what you do is being scrutinized.”

One of the most difficult situations he faced on the bench, however, was a national security wiretapping case. “The government furnished me information that it contended was crucial, classified information important to the security of the United States, but denied the other side access to the information,” says Walker. “I was in the position of having to decide a case on information one side did not have.”

Jon Eisenberg, of counsel with 
Horvitz & Levy, was the lead attorney challenging the Justice Department in the 2009 wiretapping case. “We were litigating this case on the frontiers of national security law and there were no precedents to guide us,” he says, adding that he is intrigued to now hear of Walker’s concerns. The judge did not show signs of that stress from the bench. To Eisenberg, Walker’s mien was businesslike, calm, but also gracious, courtly almost. “It was not an informal courtroom, but it was a friendly one.” And one focused on the laws and outcome, as Judge Walker would likely argue, not the 
inner passions of the participants. SL

Joan Hamilton is a Bay Area journalist and former Businessweek bureau chief who 
frequently contributes to Stanford Lawyer.

1 Response to Judge Vaughn R. Walker: Measured Justice

  1. Excellent article, thank you. One small query: I don’t understand the reference to “a new appeals court judge” on the Olympics case. Judge Goodwin, who wrote the panel opinion, was a Nixon appointee.

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